State Consumer Disputes Redressal Commission
Hero Honda Motors Limited vs Shri Amandeep Singh on 18 December, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
2nd Bench
FIRST APPEAL NO. 939 OF 2010
Date of Institution: 27.5.2010
Date of Decision: 18.12.2012
1. Hero Honda Motors Limited, Registered Office at 34,
Community Centre, Basant Lok, Vasant Vihar, New Delhi-
110057 through its authorized signatory.
2. Venus Automobiles, Thandi Sarak, Malerkotla, authorized
dealer of Hero Honda Motorcycles, through its authorized
signatory.
.....Appellants
VERSUS
1. Shri Amandeep Singh, s/o Shri Mukhtiar Singh, r/o Street No. 3,
Punia Colony, Sangrur, Tehsil & District Sangrur, Punjab.
2. M/s Goyal & Sons, Sangrur, Mehlan Road, Sangrur, Authorized
Dealer of Hero Honda through its Manager.
.....Respondents
First Appeal under Section 15 of
the Consumer Protection Act,
1986 against the order dated
23.4.2010 passed by the District
Consumer Disputes Redressal
Forum, Sangrur.
Before:
Sh. Inderjit Kaushik, Presiding Member
Sh. B.S. Sekhon, Member Present:
For the appellants : Sh. N.P. Sharma, Advocate
For the respondent No. 1 : Sh. Ashok Bhardwaj, Advocate
For the respondent No. 2 : Ex-parte
BALDEV SINGH SEKHON, MEMBER
This is an appeal against the order dated 23.4.2010 passed by the District Consumer Disputes Redressal Forum, Sangrur (hereinafter called as "District Forum") vide which the complaint of the respondent No. 1 was accepted.
First Appeal No. 939 of 2010 Page 2 of 7
2. Briefly stated, the facts of the case are that Mandeep Singh, complainant-respondent No. 1 (hereinafter called as "respondent No. 1"), purchased one Splendor Plus Alloy Motorcycle, Hero Honda make, bearing registration No. PB-13U-5105 from the appellant No. 2 on 6.4.2009. The grievance of the respondent No. 1 was that after some time the engine of the motorcycle started giving problem for which he approached the appellant No. 2 and apprised him of the problem. But he directed the respondent No. 1 to approach to the respondent No. 2 who was also authorized dealer. The respondent No. 1 got the first service of the motorcycle on 28.4.2009 but the problem was not properly solved. On the third service of the motorcycle in question, it was found that the inlet valve of the motorcycle was found bent, which was changed by the respondent No. 2. But the problem still persisted. Again the motorcycle started giving average problem, which was not tackled even after the change of the engine kit. The grievance of the respondent No. 1 is that that there is manufacturing defect in the engine, which was clear from the letter dated 16.12.2009 as also from the job cards and the appellants and respondent No. 2 failed to rectify the same.
3. Alleging deficiency in service, the respondent No. 1 filed the complaint before the District Forum seeking directions to the appellants and the respondent No. 2 to (a) replace the motorcycle in question with a new one or in alternative to pay to the respondent No. 1 purchase amount alongwith interest @ 18% from the date of purchase till realization (b) pay to the respondent No. 1 a sum of Rs. 50,000/- as compensation on account of mental pain, agony and harassment and (c) First Appeal No. 939 of 2010 Page 3 of 7 pay to the respondent No. 1 a sum of Rs. 11,000/- as litigation expenses.
4. Upon notice, the appellant No. 2 (OP No. 1 before the District Forum) filed the written statement and admitted the purchase of motorcycle from him and rest of the allegations were denied as subsequent services were conducted by respondent No. 2. Dismissal of the complaint was prayed.
5. The appellant No. 1 and respondent No. 2 filed a separate joint written statement in which it was admitted that the motorcycle in question was under warranty and during this period the respondent No. 1 got conducted free services from the respondent No. 2. On 16.12.2009, when the respondent No. 1 came to the showroom of the respondent No. 2 with a complaint, then the Mechanic, Sh. Baldev Singh conducted the service of the motorcycle and found that there was carbon on the head of the motorcycle due to the use of substandard quality of petrol. The mechanic told that the head of the motorcycle would be changed, which was changed and thereafter there was no fault in the motorcycle. It was admitted that on 16.12.2009, 28.4.2009, 25.4.2009 and 23.10.2009, the motorcycle n question, was got serviced from the respondent No. 2 but it was denied if there was any manufacturing defect in the motorcycle. Dismissal of the complaint was prayed.
6. The parties led their evidence by way of affidavits and documents.
7. The learned District Forum, after going through the pleadings of the parties and evidence on record, allowed the complaint of the respondent No. 1 and directed the appellants jointly and severally to (a) First Appeal No. 939 of 2010 Page 4 of 7 replace the motorcycle in question with a new one of the same model or in alternative pay to the respondent No. 1 its cost of Rs. 39,550/- alongwith interest @ 9% per annum from 16.12.2009 till payment (b) pay to the respondent No. 1 a sum of Rs. 3,000/- in lieu of consolidated amount of compensation.
8. Aggrieved by this order, the appellants have come up in appeal.
9. The learned counsel for the appellants submitted that no expert opinion of any automobile engineer has been taken so as to decide whether the motorcycle in question suffered from any manufacturing defect as alleged by the respondent No. 1. It was further submitted that the learned District Forum has failed to appreciate the law as well as the basic principle that interest is to be granted only by way of compensation and both interest as well as compensation cannot be granted together. It was further submitted that after service repair carried out on 16.12.2009, it was established that there was no defect in the motorcycle in question. This was duly corroborated during the next service of the vehicle, carried out on 10.2.2010 during the pendency of the complaint, when the said vehicle came for fifth free service at 9284 kms. reading and no complaint of any kind was reported by the respondent No. 1. Acceptance of the appeal and setting aside of the impugned order was prayed.
10. Learned counsel for the respondent No. 1 submitted that there was no merit in the appeal and the same be dismissed.
11. Submissions have been considered. Record has been perused.
12. The grievance of the respondent No. 1 is that after the purchase of the motorcycle, during third service carried out by the respondent No. 2 on 25.9.2009, the valve of the engine was found bent, which was First Appeal No. 939 of 2010 Page 5 of 7 replaced and thereafter during the fourth service, conducted on 27.11.2009, the cylinder kit of the engine was changed but the motorcycle continued to give problem regarding average consumption. Even after the replacement of bent valve, the defect could not be removed. Hence the motorcycle had an inherent manufacturing defect. On the other hand, the case of the appellants is that the bent valve was replaced on 25.9.2009. On 16.12.2009, when the motorcycle was brought to the workshop of the appellant No. 2, then the Mechanic, Sh. Baldev Singh conducted the service of the motorcycle and found that there was carbon on the head of the motorcycle due to use of substandard quality of petrol. The Mechanic told that the head of the engine would be changed, which was changed and thereafter there was no fault in the motorcycle. Perusal of the job card dated 28.4.2009 (Annexure C-4) shows that no problem in the motorcycle was reported and only engine oil was got changed in routine. During the third free service on 25.9.2009 (Ex. C-5), the defect in the valve was reported which was replaced. During subsequent service on 23.10.2009 (Ex. C-
9) cylinder kit of the engine was replaced. When, during the service on 27.11.2009, the problem of average and starting problem was reported, same was reportedly set right. At the time of service on 16.12.2009 (Ex. R-6), average problem was reported. The cylinder head was replaced and the respondent No. 1 had given the satisfactory report which is proved as Ex. R-2. But even after that the respondent No. 1 filed the complaint before the District Forum.
13. Even though the defect of bent valve and low average was reported but the same was duly rectified under warranty by the appellants. Appellants have contended that there was no problem after First Appeal No. 939 of 2010 Page 6 of 7 the service dated 16.12.2009 and the satisfactory report dated 16.12.2009 by the respondent No. 1 confirms it. The respondent No. 1 has not led any expert evidence to substantiate the fact that any defect was still persisting which can be attributed to inherent manufacturing defect and not due to any other fault such as use of substandard petrol in the engine. The appellants have placed on record the statement (Ex. R-11) of Sh. Baldev Singh, Mechanic, who has mentioned that if any defect was found the appellants were prepared to rectify the same but the respondent No. 1 was insisting on replacement of the motorcycle. In his statement Sh. Baldev Singh, Mechanic has further mentioned that on 16.12.2009, when the motorcycle was brought for repairs he checked it and found carbon in the head of the motorcycle which was due to the poor quality of the petrol used by the respondent No. 1 and that after replacement of the head, the problem was rectified. Even during the pendency of the complaint before the District Forum, the respondent No. 1 brought the motorcycle to the workshop of the respondent No. 2 on 10.2.2010 and job card of this repair (Ex. R-5) shows that only engine oil was changed. It is noted that this service was done at meter reading of 9284 and the previous service (when engine head was changed), was done at meter reading of 8020. Thus, when the respondent No. 1 brought back the motorcycle on 10.2.2010 after running it for 1255 kms. no complaint was reported and only engine oil was changed in routine. Even after the service carried on 16.12.2009, the respondent No. 1 at the time of receiving back the vehicle has stated (Ex. R-2) that he was satisfied with the performance of the same. Thus, the working of the motorcycle has been found to be satisfactory after 16.12.2009. In the absence of any expert opinion that First Appeal No. 939 of 2010 Page 7 of 7 there was a manufacturing defect in the motorcycle, it cannot be assumed that the motorcycle in question was having any such defect. On the contrary, absence of any defect on 10.2.2010 belies the claim of the complainant-respondent No. 1.
14. Accordingly, the appeal of the appellant is allowed and the impugned order of the District Forum is set aside. Consequently, the complaint of the respondent No. 1 is dismissed. No order as to costs.
15. The appellants have deposited an amount of Rs. 21,275/- with this Commission at the time of filing of the appeal on 27.5.2010. This amount of Rs. 21,975/- with interest accrued thereon, if any, be remitted by the registry to the appellants by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum.
16. The arguments were heard on 6.12.2012 and the order was reserved. Now, the order be communicated to the parties.
17. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(Inderjit Kaushik) Presiding Member (Baldev Singh Sekhon) Member December 18, 2012 VINAY